| 1 | A bill to be entitled |
| 2 | An act relating to legal and medical referral service |
| 3 | advertising; providing definitions; requiring |
| 4 | advertising from a medical or lawyer referral service |
| 5 | related to accidents or injuries to comply with |
| 6 | certain requirements regarding content; requiring |
| 7 | advertisements or unsolicited written communications |
| 8 | from certain legal referral services related to |
| 9 | accidents or injuries to comply with the Supreme Court |
| 10 | of Florida's Rules Regulating The Florida Bar; |
| 11 | requiring that published advertisements from a lawyer |
| 12 | referral service related to accident or injury claims |
| 13 | be filed with The Florida Bar along with an affidavit |
| 14 | meeting certain criteria; requiring advertisements or |
| 15 | unsolicited written communications from a lawyer |
| 16 | referral service related to accident or injury claims |
| 17 | to display certain information; requiring a medical or |
| 18 | lawyer referral service to obtain certain information |
| 19 | from the person referred to a lawyer or health care |
| 20 | provider; prohibiting lawyer referral services and |
| 21 | medical referral services from conditioning |
| 22 | participation in those services on recommending |
| 23 | certain other services; prohibiting a medical referral |
| 24 | service from making referrals only to a medical clinic |
| 25 | or health care provider in which it has a financial or |
| 26 | ownership interest unless the service includes in its |
| 27 | advertisements notice of that interest and limitation; |
| 28 | providing civil and criminal penalties for violations |
| 29 | relating to legal and medical referral advertising and |
| 30 | relief to persons affected; providing for the |
| 31 | disposition of the proceeds of civil penalties |
| 32 | collected; providing for cumulative effect; providing |
| 33 | for severability; providing an effective date. |
| 34 |
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| 35 | WHEREAS, there have been numerous complaints concerning |
| 36 | misleading or deceptive advertisements directed at accident or |
| 37 | injury victims by entities that advertise that they are |
| 38 | available to assist accident victims or to refer accident or |
| 39 | injury victims to lawyers and health care providers, and |
| 40 | WHEREAS, it is important for the public to have an absolute |
| 41 | trust in public safety officers and officials, including, but |
| 42 | not limited to, firefighters, police officers, military |
| 43 | personnel, and paramedics, and it is in the best interest and |
| 44 | welfare of the state that the image, representation, and |
| 45 | likeness of public safety officers, armed services personnel, |
| 46 | and other officials not be used in a deceptive or misleading |
| 47 | manner to falsely misrepresent to the public that such officers, |
| 48 | service members, and officials are recommending that the public |
| 49 | call a help line for accident or injury victims which is the |
| 50 | phone number for either an accident or injury clinic or an |
| 51 | entity in business to refer accident or injury victims to a |
| 52 | specific health care provider clinic, lawyer, or law firm, and |
| 53 | WHEREAS, the public has been misled or deceived by health |
| 54 | care provider clinics and entities claiming to be medical |
| 55 | referral services and by nonlawyer-owned lawyer referral |
| 56 | services that advertise using a catchy phone number or slogan |
| 57 | and that represent themselves as an "Ask Us" informational |
| 58 | service for accident or injury victims, without disclosing they |
| 59 | are really a front for a specific health care provider clinic, |
| 60 | patient broker, lawyer, or law firm, and |
| 61 | WHEREAS, the public should not be deceived and misled by |
| 62 | false or deceptive advertising that is for the purpose of |
| 63 | steering accident or injury victims to a specific health care |
| 64 | provider, patient broker, lawyer, or law firm, and |
| 65 | WHEREAS, lawyer advertisements for accidents and injuries |
| 66 | are regulated by the Supreme Court of Florida's Rules Regulating |
| 67 | The Florida Bar; however, those rules are not directly |
| 68 | applicable to nonlawyer entities that advertise to accident or |
| 69 | injury victims and refer those victims to lawyers or law firms, |
| 70 | and |
| 71 | WHEREAS, the Supreme Court of Florida has promulgated Rules |
| 72 | Regulating The Florida Bar and, specifically, rules regulating |
| 73 | the communication of information about legal services, and |
| 74 | WHEREAS, the Supreme Court of Florida and The Florida Bar |
| 75 | may engage in disciplinary proceedings against lawyers who |
| 76 | violate the Rules Regulating The Florida Bar, but discipline by |
| 77 | The Florida Bar does not extend to nonlawyers; therefore, for |
| 78 | the protection of the public from false or deceptive advertising |
| 79 | by nonlawyers that specifically advertise in this state to |
| 80 | accident or injury victims or for the referral of accident or |
| 81 | injury victims for legal services, it is necessary to adopt the |
| 82 | following act, NOW, THEREFORE, |
| 83 |
|
| 84 | Be It Enacted by the Legislature of the State of Florida: |
| 85 |
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| 86 | Section 1. As used in this act, the term: |
| 87 | (1) "Advertising" means an unsolicited communication to |
| 88 | the general public for the purposes of procuring business |
| 89 | related to any possible claims for accidents or injuries. The |
| 90 | forms of such advertising include, but are not limited to, |
| 91 | electronic media advertising, phone directory display |
| 92 | advertising, display print advertising, motor vehicle wrap |
| 93 | advertising, and billboard advertising. |
| 94 | (2) "Electronic media" includes, but is not limited to, |
| 95 | radio, television, the Internet, electronic phone books, |
| 96 | electronic billboards, and any other medium that delivers |
| 97 | content by electronic technology. |
| 98 | (3) "Lawyer referral service" means any person, group of |
| 99 | persons, association, organization, or entity that advertises |
| 100 | using a common phone number, a common uniform resource locator |
| 101 | (URL), or another form of contact shared by members of the |
| 102 | service and that advertises to the general public that its |
| 103 | services include making a referral to a lawyer or law firm for |
| 104 | an accident or injury claim. The term does not include: |
| 105 | (a) A lawyer or law firm that advertises using the name of |
| 106 | the lawyer or law firm; |
| 107 | (b) A pro bono or not-for-profit referral program in which |
| 108 | participating lawyers do not pay a fee or charge of any kind to |
| 109 | receive referrals or to belong to the referral panel and |
| 110 | undertake the referred matters without expectation of |
| 111 | remuneration. |
| 112 | (c) A lawyer referral service for or operated by a |
| 113 | voluntary bar association or legal aid program recognized by The |
| 114 | Florida Bar. |
| 115 | (4) "Medical referral service" means any person, group of |
| 116 | persons, association, organization, or entity that specifically |
| 117 | advertises in this state to accident victims, that advertises |
| 118 | primarily for the purpose of a health care provider filing a |
| 119 | claim for payment of treatment of an accident or injury victim, |
| 120 | and that uses a common phone number, a uniform resource locator |
| 121 | (URL), or another form of contact shared by members of the |
| 122 | service. To refer to itself as a medical referral service in any |
| 123 | advertisement, the referral service must have at least four |
| 124 | independent health care providers to which it can refer |
| 125 | consumers and with which it or any of its principals does not |
| 126 | have any financial, contractual, or ownership interest. |
| 127 | Section 2. All advertising by or on behalf of a medical or |
| 128 | lawyer referral service to the general public for services |
| 129 | related to claims from an accident or injury must comply with |
| 130 | the following, unless compliance creates a conflict with the |
| 131 | Supreme Court of Florida's Rules Regulating The Florida Bar: |
| 132 | (1) If an advertisement includes any reference to |
| 133 | referring a person to a health care provider, lawyer, or law |
| 134 | firm, the advertisement must clearly disclose the county or |
| 135 | counties in which the health care provider, lawyer, or law firm |
| 136 | to whom the referral will be made has a bona fide office from |
| 137 | which the services will be provided. |
| 138 | (2) Each advertisement is prohibited from including any |
| 139 | false, misleading, or deceptive communication. A communication |
| 140 | violates this subsection if it: |
| 141 | (a) Contains a material misrepresentation of fact. |
| 142 | (b) Fails to fully disclose those facts and issues of law |
| 143 | material to prevent the information supplied from being false or |
| 144 | misleading. |
| 145 | (c) Claims facts that cannot be substantiated. |
| 146 | (d) Contains any reference to past successes or results |
| 147 | that would deceive the public into having unjustified |
| 148 | expectations. For purposes of this act, a disclaimer that |
| 149 | "results will vary depending on the specific facts" is required |
| 150 | for any reference to past successes or results, and such |
| 151 | disclaimer must be communicated along with any reference to past |
| 152 | successes or results. |
| 153 | (e) Contains a reference to monetary amounts and suggests |
| 154 | an accident or injury victim is eligible to receive that amount |
| 155 | when that suggestion is false or deceptive or fails to fully |
| 156 | explain Florida law, such as using deceptive statements like |
| 157 | "Don't make a million dollar mistake." or "You may be entitled |
| 158 | to $100,000." when there is no factual basis to suggest such |
| 159 | monetary amount to the general public. |
| 160 | (f) Promises a specific result that cannot be guaranteed. |
| 161 | (g) Includes an advertisement using a person falsely |
| 162 | claiming the referral service helped that person. |
| 163 | (h) Includes any testimonial or endorsement by a person |
| 164 | who actually obtained the services of the referral service that |
| 165 | is false or deceptive. |
| 166 | (i) Includes an advertisement using a person truthfully |
| 167 | stating the referral service helped that person unless the |
| 168 | advertisement includes a disclaimer, equal in size to any phone |
| 169 | number or e-mail address contained within the advertisement, |
| 170 | that results may vary depending on the specific facts. |
| 171 | (j) Includes any truthful testimonial or endorsement by a |
| 172 | person who actually obtained the services of the referral |
| 173 | service, unless the advertisement includes a disclaimer, equal |
| 174 | in size to any phone number or e-mail address contained within |
| 175 | the advertisement, that results may vary depending on the |
| 176 | specific facts. |
| 177 | (k) Contains any verbal or visual reference suggesting a |
| 178 | connection between the referral service and any law enforcement |
| 179 | agency, public safety office, emergency medical service, or |
| 180 | armed service, including the use of any badge, emblem, uniform, |
| 181 | hat, vehicle, or replica of such item that falsely suggests the |
| 182 | referral service is connected with a law enforcement agency, |
| 183 | public safety office, emergency medical service, or armed |
| 184 | service. |
| 185 | Section 3. An advertisement or unsolicited written |
| 186 | communication for legal services related to accident or injury |
| 187 | victims disseminated in this state by or on behalf of any lawyer |
| 188 | referral service must comply with the Supreme Court of Florida's |
| 189 | Rules Regulating The Florida Bar pertaining to lawyer referral |
| 190 | and advertising services as if those services were provided by |
| 191 | members of The Florida Bar, including filing requirements. |
| 192 | Section 4. (1) Each advertisement by or on behalf of a |
| 193 | lawyer referral service that specifically advertises to accident |
| 194 | or injury victims and that is submitted for publication in |
| 195 | print, through electronic media, or on a billboard must be filed |
| 196 | with The Florida Bar, as required by the Rules Regulating The |
| 197 | Florida Bar when a lawyer advertises his or her business, and |
| 198 | accompanied by an affidavit signed under oath by the owner, |
| 199 | shareholder, principal, or officer of the referral service |
| 200 | affirming under penalty of perjury that the person: |
| 201 | (a) Has read and understands the Supreme Court of |
| 202 | Florida's Rules Regulating The Florida Bar that pertain to |
| 203 | lawyer referral and advertising services; |
| 204 | (b) Acknowledges that he or she is the person responsible |
| 205 | for the advertisement and for the adverse consequences of any |
| 206 | prohibited advertising, including those within this act; |
| 207 | (c) Affirms that the advertisement complies with the |
| 208 | Supreme Court of Florida's Rules Regulating The Florida Bar that |
| 209 | govern lawyer advertising; |
| 210 | (d) Acknowledges that a knowing violation of the Supreme |
| 211 | Court of Florida's Rules Regulating The Florida Bar that govern |
| 212 | lawyer advertising subjects the person to possible criminal |
| 213 | penalties and to a civil penalty of $1,000 for the first offense |
| 214 | and $5,000 for each subsequent offense; and |
| 215 | (e) Affirms that the person: |
| 216 | 1. Has filed the advertisement for review with The Florida |
| 217 | Bar in compliance with the Supreme Court of Florida's Rules |
| 218 | Regulating The Florida Bar that govern lawyer advertising; |
| 219 | 2. Is responsible for filing and will file the |
| 220 | advertisement for review with The Florida Bar in compliance with |
| 221 | the Supreme Court of Florida's Rules Regulating The Florida Bar |
| 222 | that govern lawyer advertising; or |
| 223 | 3. Has determined that the advertisement is exempt from |
| 224 | the filing requirement as set forth in the Supreme Court of |
| 225 | Florida's Rules Regulating The Florida Bar that govern lawyer |
| 226 | advertising. |
| 227 | (2) A copy of the affidavit must be submitted to The |
| 228 | Florida Bar and maintained by the referral service for 7 years. |
| 229 | Section 5. An advertisement or unsolicited written |
| 230 | communication disseminated in this state by or on behalf of a |
| 231 | lawyer referral service relating to accident or injury victims |
| 232 | must contain prominently within the body of the advertisement or |
| 233 | unsolicited written communication the following statement: "This |
| 234 | advertisement is by a lawyer referral service. Lawyers may pay |
| 235 | this service for referrals of prospective clients who respond to |
| 236 | this advertisement. This lawyer referral service is not licensed |
| 237 | to provide legal services in Florida." |
| 238 | Section 6. When a lawyer referral service or medical |
| 239 | referral service that advertises the service of referring |
| 240 | accident or injury victims to a health care provider, lawyer, or |
| 241 | law firm refers a person to a health care provider, lawyer, or |
| 242 | law firm, the referring person or entity must obtain from the |
| 243 | person referred an executed written disclosure that clearly and |
| 244 | unambiguously states any financial interest, financial |
| 245 | arrangement, financial relationship, or contractual obligation |
| 246 | that the referring person or entity has with the health care |
| 247 | provider, lawyer, or law firm to whom the referral is made. A |
| 248 | copy of each executed written disclosure must be provided to the |
| 249 | person referred within 15 days after the referral, with the |
| 250 | original signed disclosure maintained by the referral service |
| 251 | for 7 years. |
| 252 | Section 7. A lawyer referral service may not require a |
| 253 | participating lawyer or law firm to recommend the services of a |
| 254 | particular health care provider or other professional as a |
| 255 | condition of participation in the referral service. |
| 256 | Section 8. A medical referral service may not require a |
| 257 | participating health care provider to recommend the services of |
| 258 | a particular lawyer, law firm, or other health care provider as |
| 259 | a condition of participation in the referral service. |
| 260 | Section 9. (1) A medical referral service may not make |
| 261 | referrals only to a medical clinic or health care provider with |
| 262 | which the medical referral service or any owner of the medical |
| 263 | referral service has any financial or ownership interest unless |
| 264 | each advertisement by the medical referral service includes a |
| 265 | statement that the referral service only makes referrals to a |
| 266 | medical clinic or health care provider in which the medical |
| 267 | referral service has a financial or ownership interest. |
| 268 | (2) If a medical referral service makes referrals to a |
| 269 | health care provider not owned by a physician, it must include |
| 270 | in its advertising the following notice: "Notice: We may refer a |
| 271 | patient to a health care provider not owned by a physician." |
| 272 | This notice must be included in each advertisement and must be |
| 273 | as conspicuous as the advertised name of the referral service in |
| 274 | the advertisement. If the name of the service is not included in |
| 275 | the advertisement, the notice must be as conspicuous as the |
| 276 | phone number or e-mail address in the advertisement, whichever |
| 277 | is more noticeable. |
| 278 | Section 10. (1) Any person or entity that violates this |
| 279 | act is subject to a civil penalty of $1,000 for the first |
| 280 | offense and $5,000 for each subsequent offense. All civil |
| 281 | penalties imposed shall be collected by the Department of Legal |
| 282 | Affairs. Any sums collected as a civil penalty under this |
| 283 | subsection shall be deposited by the Department of Legal Affairs |
| 284 | in the State Courts Revenue Trust Fund. |
| 285 | (2) A person who claims a violation of this act may file a |
| 286 | complaint with the Department of Agriculture and Consumer |
| 287 | Services. If the department fails to initiate legal proceedings |
| 288 | within 90 days after receiving the complaint, the person who |
| 289 | filed the complaint may, in a court of competent jurisdiction, |
| 290 | seek to enforce such civil penalties and may seek an injunction |
| 291 | against the person in violation of this act. The right of a |
| 292 | person to initiate court proceedings is limited to the first |
| 293 | person who filed the complaint with the department on each |
| 294 | individual violation. All legal actions related to the same |
| 295 | violation may be consolidated pursuant to court rules. |
| 296 | (3) A person who files a court action pursuant to this act |
| 297 | may recover attorney's fees and costs, if successful in |
| 298 | obtaining an injunction; civil penalties; or both and may |
| 299 | recover 25 percent of all moneys paid as a civil penalty as a |
| 300 | result of such person's action to enforce this act, whether in |
| 301 | court or through the actions of the Department of Agriculture |
| 302 | and Consumer Services. The Department of Legal Affairs is |
| 303 | responsible for collecting and disbursing all moneys paid as a |
| 304 | civil penalty and authorized by the court or Department of |
| 305 | Agriculture and Consumer Services for collection and |
| 306 | disbursement under this subsection. |
| 307 | (4) Each prohibited advertisement that appears on a |
| 308 | billboard, is published in print media, or is broadcast on radio |
| 309 | or television, or appears on a computer website controlled by |
| 310 | the party advertising the services constitutes a separate |
| 311 | offense. |
| 312 | Section 11. A person who violates section 2 of this act |
| 313 | commits an unfair or deceptive trade practice as defined in part |
| 314 | II of chapter 501, Florida Statutes, and is subject to the |
| 315 | penalties and remedies provided therein. Further, any person |
| 316 | injured by a violation of this act may bring an action for |
| 317 | recovery of damages. A judgment in favor of the person shall be |
| 318 | for actual damages, and the losing party is liable for the |
| 319 | person's reasonable attorney's fees and costs. |
| 320 | Section 12. After a court finds that a person violated |
| 321 | this act or admitted liability or guilt to a violation of this |
| 322 | act, any subsequent knowing violation of the act by that person |
| 323 | is a misdemeanor of the second degree, punishable as provided in |
| 324 | s. 775.082 or s. 775.083, Florida Statutes. |
| 325 | Section 13. This act is cumulative and does not amend or |
| 326 | repeal any other valid law, code, ordinance, rule, or penalty |
| 327 | now in effect. |
| 328 | Section 14. If any provision of this act or its |
| 329 | application to any person or circumstance is held invalid, the |
| 330 | invalidity does not affect other provisions or applications of |
| 331 | the act which can be given effect without the invalid provision |
| 332 | or application, and to this end the provisions of the act are |
| 333 | severable. |
| 334 | Section 15. This act shall take effect July 1, 2012. |